In the early 1770s, Thomas Jefferson set out to undo the web of laws that established the Church of England as the religion of Virginia. To aid his work, Jefferson made a list of acts of either the Virginia Assembly or the English parliament (as far back as the 1540s). In all, Jefferson found 17 Virginia statutes (beginning in 1661) and 23 English statutes concerning religion.
As Professor Michael McConnell of Stanford, who has reviewed the work of Jefferson and the establishment of religion at the nation’s founding tells it, financial support from taxes did not, by itself, enshrine establishment. “Even after dissenters were given the right of free exercise of religion and the Church of England lost its tax-exempt status, the Virginia Assembly continued to speak of it as the ‘church by law established.’”
Religious rights, and states’ efforts to withhold their sanction from religion, are scheduled to come before the Supreme Court this Wednesday, when the justices will hear arguments from Trinity Lutheran Church in Columbia, Missouri. The church, which operates a preschool and day care center, contends the state’s excluding the church on religious grounds from a program that provides funds for resurfacing playgrounds violates the Constitution’s Free Exercise and Equal Protection clauses.
The appeal by Trinity Lutheran presents an early test for a Republican majority of the court that now includes Neil Gorsuch, who could cast the deciding vote. That is the same Neil Gorsuch who ruled in favor of Hobby Lobby Stores, which persuaded the court to strike down a provision of the Affordable Care Act that required employers to cover the cost of contraception for their employees.
“It is simply impossible to establish Trinity Lutheran’s religious identity, when, as Missouri has done here, the state excludes it from participation in the life of the community solely based on its religious status,” Trinity Lutheran writes in its brief, citing a concurrence by Justice Kennedy in the Hobby Lobby decision.
The playground dispute began in 2012, when the church applied for funds from Missouri’s Scrap Tire Surface Material Grant Program, which the state uses to reduce the number of tires in landfills and improve children’s safety.
The church charges that the state’s Department of Natural Resources (DNR) notified the church that it would be ineligible to receive funds from the program. In support of its determination, the state cited the Missouri Constitution, which prohibits the use of public funds “in aid of any church, sect, or denomination of religion…”
Trinity Lutheran sued Missouri in the U.S. District Court in Kansas City. The trial court dismissed the accusations, noting that payment of funds by the state “to a sectarian institution” would contravene the Establishment clause. By a vote of 2 to 1, the Eighth Circuit Court of Appeals agreed.
Trinity Lutheran asks the Supreme Court to apply strict scrutiny to the state’s action, which means the state must be able to cite a compelling governmental purpose for denying the church’s application for playground funds based solely on its status as a religious institution.
“The religious difference between Trinity Lutheran’s daycare and secular daycare operators is the only basis for the exclusion here, although they both seek scrap tire funds to fulfill the state’s recycling goals and to provide children a safer area to play,” the church writes. “Because the DNR employs a suspect classification, it must satisfy strict scrutiny.”
But precedent, counters Missouri, leads to a conclusion that the state’s decision is entitled to deference where, as here, the state has not interfered with the free exercise of its faith by Trinity Lutheran. “This court has long held that the government does not infringe the exercise of a constitutional right by declining to subsidize it,” the state argues.
Trinity Lutheran asserts that the Eighth Circuit relied in error on a ruling by the Supreme Court in Locke v. Davey, a 2004 case in which the court upheld a decision by Washington State to exclude from eligibility for state scholarship aid students who pursue degrees in devotional theology. The state cited its constitution, which prohibits use of public funds to aid religious instruction.
In reaching its decision in Locke, the court noted the tension between the Free Exercise and Establishment clauses. “In other words,” Justice Rehnquist wrote for the majority, “there are some state actions permitted by the Establishment clause but not required by the Free Exercise clause.”
The majority also considered the challenge to Washington State’s decision in the context of the history of established churches in colonial America. Rehnquist wrote:
Most states that sought to avoid an establishment of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry. The plain text of these constitutional provisions prohibited any tax dollars from supporting the clergy. We have found nothing to indicate… that these provisions would not have applied so long as the state equally supported other professions or if the amount at stake was de minimis. That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk. [citations omitted]
Missouri says the decision in Locke “applies squarely” to the appeal by Trinity Lutheran. But the church distinguishes the religious training rejected for state funds in Locke from the playground flooring that Trinity Lutheran hopes to install. Trinity Lutheran argues:
In Locke, this court was concerned by what the scholarship funds were going to be used for—the devotional training of clergy—not the identity of those who were using the money. But Trinity Lutheran’s religious identity was the sole basis for the DNR’s exclusion here. Locke simply has no application in that context.
The court agreed on January, 15 2016 to hear Trinity Lutheran’s appeal. Justice Scalia died about a month later. The justices seem to have waited to schedule the case for argument until the court again had nine justices.
That’s where Neil Gorsuch comes in. “I don’t think anybody on the secular side of the fence thinks the state of Missouri is going to get a fair shake from Mr. Hobby Lobby,” writes Elie Mystal at Above the Law, referring to the newest justice. (If that’s correct, so much for Republicans who claim to cherish states’ rights.)
Justice Gorsuch describes himself as an originalist, meaning, he says, he strives to apply the law as he finds it. For the appeal by Trinity Lutheran, he might look, as the American Civil Liberties Union suggests in a brief filed in support of Missouri, to ideas espoused by both Jefferson and James Madison, who wrote the First Amendment.
In 1785, Madison published, anonymously (he acknowledged authorship 41 years later), an essay titled “Memorial and Remonstrance against Religious Assessments.” The tract argued against a bill in the Virginia Assembly to collect a tax to fund preachers.
“Who does not see,” Madison asked, “that the same authority… which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?